From DoLS to LPS: an important time for mental capacity

Featured article - 16 March 2021
By Hugh Constant, SCIE Associate

Hugh Constant, SCIE Associate

Sometime in 2022 we will begin to say goodbye to Deprivation of Liberty Safeguards (DoLS) and introduce their successor, Liberty Protection Safeguards (LPS). LPS is a scheme set up by an amendment to the Mental Capacity Act (MCA) 2005. It might be worth reminding ourselves why we have these provisions under the MCA.

Under law, you can deprive someone of their liberty, in certain circumstances, when authorised health and care professionals, in consultation with a person’s family and/or advocates, agree that person lacks capacity to make decisions in their best interests.

No one providing care and support wants to deprive people of their liberty; the whole point is to empower people to do their own thing. But sometimes, it might need to be done and it’s a weighty responsibility on the shoulders of those who have to administer it.

New name, same commitment to protect

DoLS have always ensured people who cannot consent to their care arrangements in a care home or hospital are protected if those arrangements deprive them of their liberty. LPS have the same goals, but with some streamlining to make the system run a little more smoothly. It is worth mentioning that DoLS will run alongside LPS for a year after implementation to ease the transition of existing cases.

Here are three significant features of LPS

They do apply to 16-year olds upwards, so need to be understood by a range of children’s services.

LPS have to be authorised in advance by a 'responsible body': a hospital manager, a clinical commissioning group and, in the case of deprivations taking place in a care home or the community, the local authority.

For the responsible body to authorise any deprivation of liberty, it needs to be clear that the person: lacks the capacity to consent to care arrangements; that the person has a mental disorder; and that the arrangements are necessary to prevent harm and are proportionate to the likelihood and seriousness of that harm.

Safeguarding at all times, in all places

These safeguards will include regular reviews by the responsible body; and the right to an appropriate person or an Independent Mental Capacity Advocate to represent a person and to protect their interests. The change to legislation also broadens the scope to treat people, and deprive them of their liberty, in a medical emergency, without gaining prior authorisation.

It’s important to say that the five principles of the MCA 2005 remain in place; from a person being assumed to have capacity unless it is established that they don’t; to a person not being treated as unable to make a decision merely because they make an unwise decision.

The changes are coming, and the debate around finding the right balance between protecting people and making the process manageable will continue until they bed in. So sign up for more guidance on our site and our bulletin as the new provisions approach.

Only by staying well-informed can we make the changes a success and ensure people whose liberty is compromised receive the best possible support.

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